According to the Andhra Pradesh Reorganisation Act, 2014, the bifurcation of the Hyderabad high court and the allocation of judicial officers is to be done by the Centre.
An unprecedented crisis is unfolding in the high court of judicature at Hyderabad. Telangana lawyers have been on strike for a month, eleven judicial officers have been suspended on disciplinary grounds and, for the first time in independent India’s history, 200 judges have gone on mass casual leave in protest. Further, on 1st July, 8,000 employees in various courts and judicial departments across Telangana went on strike and the Federation of Bar Associations has now promised a ‘Jail Bharo’ programme on July 7th.
What is the cause for this unrest? In essence, it boils down to two issues: the bifurcation of the high court of judicature at Hyderabad (the common high court for Telangana and Andhra Pradesh) and the allocation of subordinate judicial officers between Telangana and Andhra Pradesh.
Bifurcation of the Hyderabad high court
The first and foremost demand of the agitating legal fraternity is the bifurcation of the high court into two separate high courts for Telangana and Andhra Pradesh. This is guaranteed under section 31(1) of the Andhra Pradesh Reorganisation Act, 2014, which states:
Subject to the provisions of section 30, there shall be a separate High Court for the State of Andhra Pradesh (hereinafter referred to as the High Court of Andhra Pradesh) and the High Court of Judicature at Hyderabad shall become the High Court for the State of Telangana (hereinafter referred to as the High Court at Hyderabad).
Even the Constitution of India guarantees this – article 214 says that there shall be a high court for each state.
Thus it is crystal clear that the bifurcation must happen. The question then is who is responsible for carrying it out. According to law minister Sadananda Gowda, the Centre has no responsibility in the bifurcation. The chief minister of Andhra Pradesh must provide the necessary infrastructure for the new court, following which the chief justice of the Hyderabad high court must act to bifurcate the court.
This assertion flies in the face of the law. As per section 31(2) of the Andhra Pradesh Reorganisation Act, “The principal seat of the High Court of Andhra Pradesh shall be at such place as the President may, by notified order, appoint.”
The president in effect means the Union cabinet (as per article 74 of the Constitution). This means that it is the Centre’s responsibility to carry out the bifurcation. As it is to be done through a notified order, all that is required is a cabinet decision. The Centre is then actually deflecting responsibility through legally incorrect statements.
Even if the Centre fully accepts responsibility, it can still delay bifurcation on one pretext or the other, as has been done so far. This is because there is no time limit for the bifurcation. The Andhra Pradesh Reorganisation Act was passed in chaotic conditions, without a time-bound clause for the court’s bifurcation.
In order to rectify this situation, I introduced a private member’s Bill in the Lok Sabha on November 17, 2015 which put a time limit to the bifurcation by amending section 31(2) of the Andhra Pradesh Reorganisation Act. To show its commitment to ending the present crisis, the government can introduce a Bill on the lines of my Bill, which states the high court’s bifurcation must be complete by the end of this year.
Allocation of judicial officers
The registrar general of the Hyderabad high court on May 5 issued a provisional list allocating subordinate judicial officers between Telangana and Andhra Pradesh. The list contained 540 judicial officers who were allocated to Andhra Pradesh and 366 to Telangana. However of these, 142 officers – nearly half – who were allocated to Telangana are of Andhra origin (as the district of origin in their application form mentions). Of the 142 officers, 58 are district judges, 31 are senior civil judges and 53 are junior civil judges. The agitators’ main contention is that the district judges, as the most senior officers, have a fair chance of becoming high court judges within the Telangana quota. This has gone down very badly with the legal fraternity of Telangana, who allege a discriminatory attitude from Andhra officers.
Most importantly, from a legal standpoint, the very basis of preparing the provisional list is flawed. It is based on guidelines framed by the chief justice of the Hyderabad high court after consultation with other judges – something they had no mandate to do.
The original task of allocating staff between Telangana and Andhra Pradesh was given to the C.R. Kamalanathan Committee, which recused itself when it came to tasks involving judicial officers, saying it did not have the authority. Guidelines for allocating judicial officers should have been framed by the Centre’s Department of Personnel and Training (DoPT), which was not done. The chief justice of the Hyderabad court then took it upon himself to carry out this job.
This is in clear violation of sections 77 and 80 of the Andhra Pradesh Reorganisation Act. Section 77(2) clearly states that this power is with the central government alone and not the judiciary. According to the sub-section:
As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service, after consideration of option received by seeking option from the employees, and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
Further, section 80 contemplates the establishment of advisory committees and sub-section (2) states that allocation guidelines on dividing staff (including judicial officers) shall be made only by the central government on the recommendations of these committees:
The allocation guidelines shall be issued by the Central Government on or after the date of enactment of the Andhra Pradesh Reorganisation Act, 2014 and the actual allocation of individual employees shall be made by the Central Government on the recommendations of the Advisory Committee:
Provided that in case of disagreement or conflict of opinion, the decision of the Central Government shall be final;
Provided further that necessary guidelines as and when required shall be framed by the Central Government or as the case may be, by the State Advisory Committee which shall be approved by the Central Government before such guidelines are issued.
It is clear, then, that as per the law it is the Centre’s responsibility to appoint a committee that will allocate judicial officers between the two states. The provisional list is invalid and should be revoked immediately. The Centre should appoint a committee at the earliest to carry out the allocation of judicial officers.
The problem has intensified since the high court has not yet been bifurcated. Had this been done, chief justices of both courts could have resolved the issue amongst themselves, as was done in the case of Jharkhand, Uttarakhand and the other separated states. Without this bifurcation, the Centre alone can make these decisions.
It is thus clear that for both demands, the Centre alone is responsible. Will it accept its duty and live up to its proclaimed commitment to ‘cooperative federalism’? Or will it continue to be beholden to vested interests and let the current crisis blow up further? Only time will tell, but I pray that prudence prevails.
B. Vinod Kumar is a member of parliament and Lok Sabha deputy floor leader of the Telangana Rashtra Samithi. He tweets at @vinodboianpalli and can be reached at email@example.com